[Federal Register Volume 79, Number 89 (Thursday, May 8, 2014)]
[Proposed Rules]
[Pages 26392-26401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10533]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2013-0031; 4500030113]
RIN 1018-AZ59


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Florida Leafwing and Bartram's Scrub-
Hairstreak Butterflies

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revision and reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period on the August 15, 2013, proposed 
designation of critical habitat for the Florida leafwing (Anaea 
troglodyta floridalis) and Bartram's scrub-hairstreak (Strymon acis 
bartrami) butterflies under the Endangered Species Act of 1973, as 
amended (Act). We are proposing to revise the previously proposed 
critical habitat for these species by including hydric pine flatwoods 
in their primary constituent elements and by increasing the size of the 
Everglades National Park Unit for each butterfly to 7,994 acres (ac) 
(3,235 hectares (ha)). In total, we are proposing to designate as 
critical habitat 10,561 ac (4,273 ha) in four units for the Florida 
leafwing, and 11,539 ac (4,670 ha) in seven units for the Bartram's 
scrub-hairstreak; all units are located within Miami-Dade and Monroe 
Counties, Florida. We also announce the availability of a draft 
economic analysis (DEA) and an amended required determinations section 
for the proposed determination. We are reopening the comment period to 
allow all interested parties an opportunity to comment simultaneously 
on the revised proposed rule, the associated DEA, and the amended 
required determinations section. Comments previously submitted need not 
be resubmitted, as they will be fully considered in preparation of the 
final rule.

DATES: We will consider comments received or postmarked on or before 
June 9, 2014. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date.

ADDRESSES:
    Document availability: You may obtain copies of the proposed rule 
and the associated DEA on the internet at http://www.regulations.gov at 
Docket No. FWS-R4-ES-2013-0031 or by mail from the South Florida 
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
    Written Comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the critical habitat proposal 
and associated DEA by searching for Docket No. FWS-R4-ES-2013-0031, 
which is the docket number for this rulemaking.
    (2) By hard copy: Submit comments on the critical habitat proposal 
and associated DEA by U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: FWS-R4-ES-2013-0031; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Craig Aubrey, Field Supervisor, U.S. 
Fish and Wildlife Service, South Florida Ecological Services Office, 
1339 20th Street, Vero Beach, FL 32960, by telephone (772-562-3909), or 
by facsimile (772-562-4288). Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments

    We will accept written comments and information during this 
reopened comment period on our revised proposed designation of critical 
habitat for the Florida leafwing and Bartram's scrub-hairstreak, our 
DEA of the proposed designation, and the amended required 
determinations provided in this document. We will consider information 
and recommendations from all interested parties. We are particularly 
interested in comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat is not 
prudent.
    (2) Specific information on:
    (a) The distribution of the Florida leafwing and Bartram's scrub-
hairstreak;
    (b) The amount and distribution of Florida leafwing and Bartram's 
scrub-hairstreak habitat; and
    (c) What areas occupied by either or both species at the time of 
listing contain features essential for the conservation of the species 
and why; and
    (d) What areas not occupied at the time of listing are essential to 
the conservation of the species and why.
    (3) Land use designations and current or planned activities in the 
subject areas and their probable impacts on proposed critical habitat 
of either or both species.
    (4) Information on the projected and reasonably likely impacts of 
climate change on the Florida leafwing and Bartram's scrub-hairstreak 
and proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, the benefits of including or excluding 
areas that exhibit these impacts.
    (6) Information on the extent to which the description of economic 
impacts in the DEA is a reasonable estimate of the likely economic 
impacts.

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    (7) The likelihood of adverse social reactions or social welfare 
impacts to the designation of critical habitat, as discussed in the 
associated documents of the DEA, and how the consequences of such 
reactions or impacts, if likely to occur, would relate to the 
conservation and regulatory benefits of the proposed critical habitat 
designation for either or both species.
    (8) Whether any areas we are proposing for critical habitat 
designation for either or both species should be considered for 
exclusion under section 4(b)(2) of the Act, and whether the benefits of 
potentially excluding any specific area outweigh the benefits of 
including that area under section 4(b)(2) of the Act.
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    If you submitted comments or information on the proposed rule (78 
FR 49832) during the initial comment period from August 15, 2013, to 
October 15, 2013, please do not resubmit them. We will incorporate them 
into the public record as part of this comment period, and we will 
fully consider them in the preparation of our final determination. 
However, new comments may be submitted. Our final determination 
concerning critical habitat will take into consideration all written 
comments and any additional information we receive during both comment 
periods. On the basis of public comments, we may, during the 
development of our final determination, find that areas proposed are 
not essential, are appropriate for exclusion under section 4(b)(2) of 
the Act, or are not appropriate for exclusion.
    You may submit your comments and materials concerning the proposed 
rule or DEA by one of the methods listed in ADDRESSES. We request that 
you send comments only by the methods described in ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that 
includes personal identifying information, you may request at the top 
of your document that we withhold this information from public review. 
However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule and DEA, will be 
available for public inspection on http://www.regulations.gov at Docket 
No. FWS-R4-ES-2013-0031, or by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, South Florida Ecological 
Services Office (see FOR FURTHER INFORMATION CONTACT). You may obtain 
copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2013-0031, or by mail 
from the South Florida Ecological Services Office (see FOR FURTHER 
INFORMATION CONTACT section).

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the Florida leafwing and 
Bartram's scrub-hairstreak in this document. For more information on 
the Florida leafwing and Bartram's scrub-hairstreak and their habitats, 
refer to the proposed listing and critical habitat rule published in 
the Federal Register on August 15, 2013 (78 FR 49832), which is 
available online at http://www.regulations.gov (at Docket Number FWS-
R4-ES-2013-0031) or from the South Florida Ecological Services Office 
(see FOR FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On August 15, 2013, we published a proposed rule to designate 
critical habitat for the Florida leafwing and Bartram's scrub-
hairstreak (78 FR 49832). We proposed to designate approximately 8,283 
ac (3,351 ha) in four units for the Florida leafwing and 9,261 ac 
(3,748 ha) in seven units for the Bartram's scrub-hairstreak, located 
in Miami-Dade and Monroe Counties, Florida, as critical habitat. That 
proposal had a 60-day comment period, ending October 15, 2013.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

New Information and Changes From the Previously Proposed Critical 
Habitat

    In this document, we are notifying the public of changes to the 
proposed critical habitat rule. In the August 15, 2013, proposed rule 
(78 FR 49832), we discussed the current distribution of the Florida 
leafwing and Bartram's scrub-hairstreak. Our analysis indicated the 
Florida leafwing is known to actively disperse throughout the majority 
of the Long Pine Key region of Everglades National Park (ENP) (Salvato 
and Salvato 2010, p. 91; 2010c, p. 139). Similarly, Salvato and Salvato 
(2010b, p. 159) indicated that, while generally uncommon, the Bartram's 
scrub-hairstreak is widespread within the Long Pine Key region.
    Since publication of the proposed rule, we have obtained new 
information regarding the distribution of the Florida leafwing and 
Bartram's scrub-hairstreak documenting that their distribution, as well 
as the boundaries of pine rockland habitat within ENP in which they 
occur, is larger than we indicated in the proposed rule. Sadle (pers. 
comm. 2013c) and Salvato (pers. comm. 2013) indicate that several areas 
with recent Florida leafwing and Bartram's scrub-hairstreak 
observations, as well as areas with known hostplant populations, were 
not included within the critical habitat boundaries proposed for the 
ENP in the Miami-Dade County, Florida, Units of each butterfly.
    Accordingly, we are proposing to revise our proposed critical 
habitat designation for the Florida leafwing and Bartram's scrub-
hairstreak by increasing the size of the ENP Miami-Dade County, 
Florida, Units of both butterflies from 5,716 ac (2,313 ha) to 7,994 ac 
(3,235 ha), to incorporate the additional pine rockland and associated 
habitats within the Long Pine Key region of ENP where additional recent 
sightings have been documented. These habitat patches in the expansion 
area of proposed critical habitat will ensure connectivity between 
viable populations within the Long Pine Key region of ENP.
    In total, we are proposing to designate critical habitat consisting 
of 10,561 ac (4,273 ha) in four units for the Florida leafwing and 
11,539 ac (4,670 ha) in seven units for the Bartram's scrub-hairstreak, 
located in Miami-Dade and

[[Page 26394]]

Monroe Counties, Florida. For a full description of the previously 
proposed units for these subspecies, please see the proposed critical 
habitat rule (78 FR 49832; August 15, 2013).
    We also received new information which indicates existing data do 
not support the necessity of including a specified return interval for 
disturbance (i.e., 3 to 5 years for fire), as indicated under primary 
constituent element (PCE) 4. Information indicates that the butterflies 
have been observed at varying densities within pine rocklands that have 
burned at intervals of up to 10 years. Observations of the Florida 
leafwing and Bartram's scrub-hairstreak within portions of Long Pine 
Key that have experienced fire or other disturbance regimes at 
intervals of up to 10 years (Salvato and Salvato 2010a, p. 91; 2010b, 
p. 154; Sadle pers. comm. 2013c) suggest further studies are required 
on the influence of these factors on butterfly ecologies. In addition, 
we received new information that indicates the physical and biological 
feature (PBF) 5 should be modified to mention storms, in addition to 
fire, as disturbance regimes for both butterflies (Cook 2013, pers. 
comm.).
    Because of this new information on the distribution of Florida 
leafwing and the Bartram's scrub-hairstreak, as well as additional 
comments we received on disturbance regimes and fire-return intervals 
in the pine rocklands of ENP, we are proposing to revise the physical 
and biological features (PBFs) and corresponding primary constituent 
elements (PCEs) for both butterflies to include the new habitats and 
disturbance regimes and to modify fire-return intervals. Therefore, for 
both butterflies, hydric pine flatwoods are being included in all 
habitats of the PBFs and the PCEs. Specific time intervals have been 
removed from the disturbance and fire-return intervals of the PCEs for 
both butterflies.
    Therefore, the purpose of this proposed revision to the proposed 
critical habitat is to include these new areas that are currently 
occupied by Florida leafwing and the Bartram's scrub-hairstreak, which 
contain the PBFs essential to the conservation of the species, and may 
require special management considerations or protection, and thus meet 
the definition of critical habitat. The expansion of the ENP unit 
included in the proposed designation would provide for the conservation 
of both butterflies by:
    (1) Maintaining the PBFs essential to the conservation of both 
butterflies where they are known to occur;
    (2) Maintaining their current distribution, thus preserving genetic 
variation throughout the range of the species and minimizing the 
potential effects of local extirpation; and
    (3) Maintaining connectivity between viable populations within the 
Long Pine Key region of ENP.

Proposed Critical Habitat Designation

    We are proposing to revise the previously proposed critical habitat 
for the Florida leafwing and Bartram's scrub-hairstreak by increasing 
the size of the ENP Miami-Dade County, Florida, Units of both 
butterflies. The proposed critical habitat units constitute our current 
and best assessment of the areas that meet the definition of critical 
habitat for these subspecies. Except for the ENP units of Florida 
leafwing and Bartram's scrub-hairstreak, the proposed critical habitat 
for both butterflies are unchanged from our descriptions in the August 
15, 2013, proposed rule (78 FR 49832), and are not repeated in this 
document. We present below brief descriptions of the revised ENP Miami-
Dade County, Florida Unit, and reasons why it meets the definition of 
critical habitat for the Florida leafwing and Bartram's scrub-
hairstreak.

Everglades National Park Unit, Miami-Dade County, Florida

    The proposed ENP Miami-Dade County, Florida Unit for Florida 
leafwing and Bartram's scrub-hairstreak consists of 7,994 ac (3,235 ha) 
in Miami-Dade County. This unit is composed entirely of lands in 
Federal ownership, 100 percent of which are located within the Lone 
Pine Key region of ENP. This unit is currently occupied by both 
butterflies and contains all the PBFs, including suitable habitat (pine 
rockland and associated rockland and hydric pine flatwood habitats of 
sufficient size), hostplant presence, natural or artificial disturbance 
regimes, low levels of nonnative vegetation and larval parasitism, 
hostplant, and restriction of pesticides and contains the PCE of pine 
rockland (PCE 1 for both species).
    The PBFs in this unit may require special management considerations 
or protection to address threats of fire suppression, habitat 
fragmentation, poaching, and sea level rise. However, in most cases 
these threats are being addressed or coordinated with the National Park 
Service to implement needed actions.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we 
consider, among other factors, the additional regulatory benefits that 
an area would receive through the analysis under section 7 of the Act 
addressing the destruction or adverse modification of critical habitat 
as a result of actions with a Federal nexus (activities conducted, 
funded, permitted, or authorized by Federal agencies), the educational 
benefits of identifying areas containing essential features that aid in 
the recovery of the listed species, and any ancillary benefits 
triggered by existing local, State or Federal laws as a result of the 
critical habitat designation.
    When considering the benefits of exclusion we consider, among other 
things, whether exclusion of a specific area is likely to incentivize 
or result in conservation; the continuation, strengthening, or 
encouragement of partnerships; or implementation of a management plan. 
In the case of the Florida leafwing and Bartram's scrub-hairstreak, the 
benefits of critical habitat include public awareness of the presence 
of the Florida leafwing and Bartram's scrub-hairstreak and the 
importance of habitat protection, and where a Federal nexus exists, 
increased habitat protection for the Florida leafwing and Bartram's 
scrub-hairstreak due to protection from adverse modification or 
destruction of critical habitat. In practice, situations with a Federal 
nexus exist primarily on Federal lands or for projects undertaken by 
Federal agencies.
    We have not proposed to exclude any areas from critical habitat. 
However, the final decision on whether to exclude any areas will be 
based on the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis (DEA) concerning the 
proposed critical habitat designation, which is available for review 
and comment (see ADDRESSES).

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that

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may result from a designation of critical habitat. As part of this 
assessment we identify the geographic areas or specific activities that 
could experience the greatest impacts, measured in terms of changes in 
social welfare. To assess the probable economic impacts of a 
designation, we begin by identifying the specific land uses or 
activities and projects that may occur in areas proposed as critical 
habitat. We then evaluate the impacts that a specific critical habitat 
designation may have in terms of restricting or modifying these land 
uses or activities for the benefit of the species and its habitat. 
Next, we determine which conservation efforts may be the result of the 
species being listed under the Act versus those attributed solely to 
the designation of critical habitat for this particular species. The 
probable economic impact of a proposed critical habitat designation is 
analyzed by comparing scenarios ``without critical habitat'' and ``with 
critical habitat.'' The ``without critical habitat'' scenario 
represents the baseline for the analysis, which includes the existing 
regulatory and socio-economic burden imposed on landowners, managers, 
or other resource users potentially affected by the designation of 
critical habitat (e.g., under the Federal listing as well as other 
Federal, State, and local regulations). The baseline costs, therefore, 
include the costs of all efforts attributable to the listing of the 
species under the Act (i.e., conservation of the species and its 
habitat incurred regardless of whether critical habitat is designated). 
The ``with critical habitat'' scenario describes the incremental 
impacts associated specifically with the designation of critical 
habitat for the species. The incremental conservation efforts and 
associated impacts would not be expected without the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat, 
above and beyond the baseline costs. These are the costs we use when 
evaluating the benefits of inclusion and exclusion of particular areas 
from the final designation of critical habitat should we choose to 
conduct an optional 4(b)(2) exclusion analysis.
    For this designation, we developed an incremental effects 
memorandum (IEM) considering the probable incremental economic impacts 
that may result from the proposed designation of critical habitat. The 
information contained in our IEM was then used to develop a screening 
analysis of the probable effects of the designation of critical habitat 
for the Florida leafwing and Bartram's scrub-hairstreak (IEc 2014, 
entire). The purpose of the screening analysis is to filter out the 
geographic areas in which the critical habitat designation is unlikely 
to result in probable incremental economic impacts. In particular, the 
screening analysis considers baseline costs (i.e., absent critical 
habitat designation) and includes probable economic impacts where land 
and water use may be subject to conservation plans, land management 
plans, best management practices, or regulations that protect the 
habitat area as a result of the Federal listing status of the species. 
The screening analysis filters out particular areas of critical habitat 
that are already subject to such protections and are, therefore, 
unlikely to incur incremental economic impacts. The screening analysis 
also assesses whether units are unoccupied by the species and may 
require additional management or conservation efforts as a result of 
the critical habitat designation and may incur incremental economic 
impacts. This screening analysis, combined with the information 
contained in our IEM, is our DEA of the proposed critical habitat 
designation for the Florida leafwing and Bartram's scrub-hairstreak and 
is summarized in the narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable. We 
assess, to the extent practicable and if sufficient data are available, 
the probable impacts to both directly and indirectly impacted entities. 
As part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our IEM dated November 26, 2013, 
we identified probable incremental economic impacts associated with the 
following categories of activities: (1) Fire management; (2) forest 
management; (3) conservation/restoration; (4) flood control; (5) 
recreation; (6) water quality/supply; (7) development; (8) utilities; 
(9) mosquito control; (10) transportation; and (11) tourism. We 
considered each industry or category individually for each butterfly. 
Additionally, we considered whether their activities have any Federal 
involvement. Critical habitat designation will not affect activities 
that do not have any Federal involvement; only activities conducted, 
funded, permitted, or authorized by Federal agencies. In areas where 
the Florida leafwing and Bartram's scrub-hairstreak are present, 
Federal agencies already are required to consult with the Service under 
section 7 of the Act on activities they fund, permit, or implement that 
may affect the species. If we finalize the proposed critical habitat 
designations, consultations to avoid the destruction or adverse 
modification of critical habitat would be incorporated into the 
existing consultation process.
    In our IEM, we attempted to distinguish between the effects that 
would result from the species being listed and those attributable to 
the critical habitat designation (i.e., difference between the jeopardy 
and adverse modification standards) for the Florida leafwing and 
Bartram's scrub-hairstreak. Because the designation of critical habitat 
for Florida leafwing and Bartram's scrub-hairstreak was proposed 
concurrently with the listing, it has been our experience that it is 
more difficult to discern which conservation efforts are attributable 
to the species being listed and those which would result solely from 
the designation of critical habitat. However, the following specific 
circumstances in this case help to inform our evaluation: (1) The 
essential physical and biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species, and (2) any actions that would result in sufficient harm or 
harassment to constitute jeopardy to the Florida leafwing and Bartram's 
scrub-hairstreak would also likely adversely affect the essential 
physical and biological features of critical habitat. The IEM outlines 
our rationale concerning this limited distinction between baseline 
conservation efforts and incremental impacts of the designation of 
critical habitat for these subspecies.
    The proposed revised critical habitat designation for the Florida 
leafwing totals approximately 10,561 ac (4,273 ha), of which 
approximately 74 percent is currently occupied by the butterfly. The 
proposed critical habitat designation includes lands under Federal (85 
percent), State (3 percent), and private and local municipal (12 
percent) ownership.
    The proposed revised critical habitat designation for the Bartram's 
scrub-hairstreak totals approximately 11,539 ac (4,670 ha) of which 98 
percent is currently occupied by the butterfly. The proposed critical 
habitat designation includes lands under Federal (80

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percent), State (5 percent), and private and local municipalities (15 
percent) ownership.
    In other words, approximately 98 percent of proposed revised 
critical habitat areas are considered to be occupied by one or both 
butterfly species, providing significant baseline protection. Any 
actions that may affect the Florida leafwing and Bartram's scrub-
hairstreak would also affect designated critical habitat, and it is 
unlikely that any additional conservation efforts would be recommended 
to address the adverse modification standard over and above those 
recommended as necessary to avoid jeopardizing the continued existence 
of the butterflies. For both butterflies, the quality of their habitat, 
especially when it includes the host plant, is closely linked to the 
species' survival. Therefore, in our DEA we determined that only 
administrative costs are expected in the proposed occupied critical 
habitat (for the Florida leafwing and Bartram's scrub-hairstreak). 
Thus, the Service believes that, in most circumstances, while this 
additional analysis will require time and resources by both the Federal 
action agency and the Service, these costs would predominantly be 
administrative in nature and would not be significant.
    Approximately 24 percent of the proposed critical habitat for the 
Florida leafwing butterfly is unoccupied. These areas were historically 
occupied, but are now unoccupied, and are essential for the 
conservation of the subspecies. Approximately 2 percent of the proposed 
critical habitat for Bartram's scrub-hairstreak is unoccupied. These 
areas are not known to be historically occupied by the subspecies; 
however they are within the historical range of the butterfly and are 
essential for the conservation of the subspecies. In the two units that 
are not occupied by either butterfly species, in the DEA we also 
conclude incremental impacts are likely limited to administrative 
costs, because of the existing baseline protections in these areas. 
Specifically:
     BSHB Unit 6 consists of a mix of Federal, State, county, 
and private lands on the remote island of No Name Key, located in the 
Florida Keys. Of the acres proposed as critical habitat on No Name Key, 
85 percent are currently managed for conservation purposes as part of 
the National Key Deer Refuge (NKDR). The remaining acres are privately 
owned and currently managed as part of Monroe County's Habitat 
Conservation Plan (HCP) related to the Federal Emergency Management 
Agency's National Flood Insurance Program (FEMA NFIP).
     BSHB Unit 7 occurs entirely within the NKDR, managed by 
the Service for conservation purposes. Future activities that may 
result in section 7 consultation in this unit are limited to periodic 
fire management and insect control activities.
    Federal action agencies will most likely incur incremental costs 
associated with section 7 consultations. The economic costs of 
implementing the rule through section 7 of the Act will most likely be 
limited to the additional administrative effort required to consider 
adverse modification in a small number of future section 7 
consultations. Approximately 98 percent of proposed critical habitat 
areas are considered to be occupied by one or both butterfly species 
(11,319 acres), providing significant baseline protection. Critical 
habitat designation is unlikely to result in incremental changes to 
conservation actions in currently occupied areas over and above those 
necessary to avoid jeopardizing of the species. Accordingly, only 
administrative costs are expected in those areas. In the proposed 
critical habitat not occupied by either butterfly species (about 2 
percent), incremental impacts are also likely limited to administrative 
costs due to existing protections in these areas. Existing protections 
include Service management of the majority of the areas as part of NKDR 
operating under their CCP, and the remainder of the areas are privately 
owned and already regulated by a complex mix of Federal, State, and 
local land management regulations and policies.
    Based on the available information, we anticipate no more than 
eight to nine consultations per year in occupied and unoccupied 
critical habitat units. Unit costs of such administrative efforts range 
from approximately $400 to $9,000 per consultation (2013 dollars, total 
cost for all parties participating in a single consultation). Applying 
these unit cost estimates, this analysis conservatively estimates that 
the administrative cost of considering adverse modification in section 
7 consultation will result in incremental costs of up to $72,000 (2013 
dollars) in a given year.
    Regulatory uncertainty generated by critical habitat may result in 
landowners or buyers perceiving that the rule will restrict land or 
water use activities in some way and therefore value the resource less 
than they would have absent critical habitat. This is a perceptional, 
or stigma, effect of critical habitat on markets. Costs resulting from 
public perception of the impact of critical habitat, if they occur, are 
more likely to occur on private lands located in BSHB Units 2, 3, 4 and 
FLB Units 2 and 3 in Miami-Dade County.
    Therefore, the incremental administrative burden resulting from the 
designation is unlikely to reach $100 million in a given year based on 
the small number of anticipated consultations and pre-consultation 
costs. Under Executive Order 12866, agencies must assess the potential 
costs and benefits of regulatory actions and quantify those costs and 
benefits if that action may have an effect on the economy of $100 
million or more annually.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rule and our 
amended required determinations. We may revise the proposed rule or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exclude an area 
from critical habitat if we determine that the benefits of excluding 
the area outweigh the benefits of including the area, provided the 
exclusion will not result in the extinction of these subspecies.

Required Determinations--Amended

    In our August 15, 2013, proposed rule (78 FR 49832), we indicated 
that we would defer our determination of compliance with several 
statutes and executive orders until we had evaluated the probable 
effects on landowners and stakeholders and the resulting probable 
economic impacts of the designation. Following our evaluation in the 
DEA of the probable incremental economic impacts resulting from the 
designation of critical habitat for the Florida leafwing and Bartram's 
scrub-hairstreak, we have amended or affirmed our determinations below. 
Specifically, we affirm the information in our proposed rule concerning 
Executive Order (E.O.s) 12866 and 13563 (Regulatory Planning and 
Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), 
E.O. 13211 (Energy Supply, Distribution, or Use), the Unfunded Mandates 
Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 
U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). However, based on our evaluation of the 
probable incremental economic impacts of the proposed designation of 
critical habitat for the Florida leafwing and Bartram's scrub-
hairstreak, we are amending our

[[Page 26397]]

required determination concerning the Regulatory Flexibility Act (RFA; 
5 U.S.C. 601 et seq.) and E.O. 12630 (Takings).

Regulatory Flexibility Act

    Under the RFA, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a certification statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are required to evaluate the potential incremental impacts of 
rulemaking only on those entities directly regulated by the rulemaking 
itself and, therefore, are not required to evaluate the potential 
impacts to indirectly regulated entities. The regulatory mechanism 
through which critical habitat protections are realized is section 7 of 
the Act, which requires Federal agencies, in consultation with the 
Service, to ensure that any action authorized, funded, or carried by 
the agency is not likely to adversely modify critical habitat. 
Therefore, under these circumstances only Federal action agencies are 
directly subject to the specific regulatory requirement (avoiding 
destruction and adverse modification) imposed by critical habitat 
designation. Under these circumstances, it is our position that only 
Federal action agencies will be directly regulated by this designation. 
Federal agencies are not small entities, and, to this end, there is no 
requirement under RFA to evaluate the potential impacts to entities not 
directly regulated. Therefore, because no small entities are directly 
regulated by this rulemaking, the Service certifies that, if 
promulgated, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if promulgated, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

E.O. 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Florida leafwing and Bartram's scrub-hairstreak in a 
takings implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding, assistance, or require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. The DEA found that no significant 
economic impacts are likely to result from the designation of critical 
habitat for Florida leafwing and Bartram's scrub-hairstreak. Because 
the Act's critical habitat protection requirements apply only to 
Federal agency actions, few conflicts between critical habitat and 
private property rights should result from this designation. Based on 
information contained in the economic analysis assessment and described 
within this document, it is not likely that economic impacts to a 
property owner would be of a sufficient magnitude to support a takings 
action. Therefore, we conclude that the designation of critical habitat 
for the Florida leafwing and Bartram's scrub-hairstreak does not pose 
significant takings implications for lands within or affected by the 
designation.

Author

    The primary authors of this notice are the staff members of the 
South Florida Ecological Services Field Office, Southeast Region, U.S. 
Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, which was 
proposed to be amended at 78 FR 49832, August 15, 2013, as set forth 
below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.

0
2. In Sec.  17.95 paragraph (i), amend the entries proposed at 78 FR 
49832 on August 15, 2013, for ``Bartram's Scrub-hairstreak Butterfly 
(Strymon acis bartrami)'' and ``Florida Leafwing Butterfly (Anaea 
troglodyta floridalis),'' by revising paragraphs (i)(2), (i)(5), and 
(i)(6) for both entries, to read as follows::


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
Bartram's Scrub-Hairstreak Butterfly (Strymon acis bartrami)
* * * * *

[[Page 26398]]

    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Bartram's scrub-hairstreak are:
    (i) Areas of pine rockland habitat, and in some locations, 
associated rockland hammocks and hydric pine flatwoods.
    (A) Pine rockland habitat contains:
    (1) Open canopy, semi-open subcanopy, and understory;
    (2) Substrate of oolitic limestone rock; and
    (3) A plant community of predominately native vegetation.
    (B) Rockland hammock habitat associated with the pine rocklands 
contains:
    (1) Canopy gaps and edges with an open to semi-open canopy, 
subcanopy, and understory;
    (2) Substrate with a thin layer of highly organic soil covering 
limestone or organic matter that accumulates on top of the underlying 
limestone rock; and
    (3) A plant community of predominately native vegetation.
    (C) Hydric pine flatwood habitat associated with the pine rocklands 
contains:
    (1) Open canopy with a sparse or absent subcanopy and dense 
understory;
    (2) Substrate with a thin layer of poorly drained sands and organic 
materials that accumulates on top of the underlying limestone or 
calcareous rock; and
    (3) A plant community of predominately native vegetation.
    (ii) The absence of competitive nonnative plant species or their 
existence in quantities low enough to have minimal effect on survival 
of Bartram's scrub-hairstreak butterfly.
    (iii) The presence of the butterfly's hostplant, pineland croton, 
in sufficient abundance for larval recruitment, development, and food 
resources, and for adult butterfly nectar source and reproduction.
    (iv) A dynamic natural disturbance regime or one that artificially 
duplicates natural ecological processes (e.g., fire, hurricanes, or 
other weather events, at appropriate intervals) that maintains the pine 
rockland habitat and associated hardwood hammock and hydric pine 
flatwood plant communities.
    (v) Pine rockland habitat and associated hardwood hammock and 
hydric pine flatwood plant communities that allow for connectivity and 
are sufficient in size to sustain viable populations of Bartram's scrub 
hairstreak butterfly.
    (vi) Pine rockland habitat and associated hardwood hammock and 
hydric pine flatwood plant communities with levels of pesticide low 
enough to have minimal effect on the survival of the butterfly or its 
ability to occupy the habitat.
* * * * *
    (5) Note: Index map of all critical habitat units for Bartram's 
scrub-hairstreak follows:
[GRAPHIC] [TIFF OMITTED] TP08MY14.005

    (6) Unit BSHB1: Everglades National Park, Miami-Dade County, 
Florida.
    (i) General Description: Unit BSHB1 consists of 7,994 ha (3,235 ac) 
composed entirely of lands in Federal ownership, 100 percent of which 
are located within the Long Pine Key region of Everglades National 
Park.
    (ii) Map of Unit BSHB1 follows:

[[Page 26399]]

[GRAPHIC] [TIFF OMITTED] TP08MY14.006

* * * * *
Florida Leafwing Butterfly  (Anaea troglodyta floridalis)
* * * * *
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Florida leafwing butterfly consist of six components:
    (i) Areas of pine rockland habitat, and in some locations, 
associated rockland hammocks and hydric pine flatwoods.
    (A) Pine rockland habitat contains:
    (1) Open canopy, semi-open subcanopy, and understory;
    (2) Substrate of oolitic limestone rock; and
    (3) A plant community of predominately native vegetation.
    (B) Rockland hammock habitat associated with the pine rocklands 
contains:
    (1) Canopy gaps and edges with an open to semi-open canopy, 
subcanopy, and understory;
    (2) Substrate with a thin layer of highly organic soil covering 
limestone or organic matter that accumulates on top of the underlying 
limestone rock; and
    (3) A plant community of predominately native vegetation.
    (C) Hydric pine flatwood habitat associated with the pine rocklands 
contains:
    (1) Open canopy with a sparse or absent subcanopy and dense 
understory;
    (2) Substrate with a thin layer of poorly drained sands and organic 
materials that accumulates on top of the underlying limestone or 
calcareous rock; and
    (3) A plant community of predominately native vegetation.
    (ii) The absence of competitive nonnative plant species or their 
existence in quantities low enough to have minimal effect on survival 
of the Florida leafwing.
    (iii) The presence of the butterfly's hostplant, pineland croton, 
in sufficient abundance for larval recruitment, development, and food 
resources and

[[Page 26400]]

for adult butterfly roosting habitat and reproduction.
    (iv) A dynamic natural disturbance regime or one that artificially 
duplicates natural ecological processes (e.g., fire, hurricanes, or 
other weather events, at appropriate intervals) that maintains the pine 
rockland habitat and associated hardwood hammock and hydric pine 
flatwood plant communities.
    (v) Pine rockland habitat and associated hardwood hammock and 
hydric pine flatwood plant communities sufficient in size to sustain 
viable Florida leafwing populations.
    (vi) Pine rockland habitat and associated hardwood hammock and 
hydric pine flatwood plant communities with levels of pesticide low 
enough to have minimal effect on the survival of the butterfly or its 
ability to occupy the habitat.
* * * * *
    (5) Note: Index map of all critical habitat units for Florida 
leafwing follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TP08MY14.007

    (6) Note: Unit FLB1: Everglades National Park, Miami-Dade County, 
Florida.
    (i) General Description: Unit FLB1 consists of 7,994 ha (3,235 ac) 
in Miami-Dade County and is composed entirely of lands in Federal 
ownership, 100 percent of which are located within the Long Pine Key 
region of Everglades National Park.
    (ii) Map of Unit FLB1 follows:

[[Page 26401]]

[GRAPHIC] [TIFF OMITTED] TP08MY14.008

* * * * *

    Dated: April 10, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-10533 Filed 5-7-14; 8:45 am]
BILLING CODE 4310-55-C